Today's article opens our "Tuesday Mornings for Construction Professionals" series, which we'd like to devote to selected aspects of conservation protection in relation to real estate and the implementation of investments therein. We'll begin, of course, by presenting the forms of protection provided for by Polish law. The primary legal act regulating the protection of monuments is the Act of 23 July 2003 on the Protection and Care of Monuments ("Monuments Protection Act"). According to Article 1 of this Act, it defines, among other things, the subject matter, scope, and forms of protection and care for monuments, the financing of conservation, restoration, and construction work on monuments, as well as the organization of monument protection bodies.
The Act on the Protection of Monuments contains definitions of monuments, and in the case of real estate, two types can be distinguished:
- immovable monument – a real estate property, part thereof or a complex of real estate properties, created by humans or related to their activities and constituting a testimony to a bygone era or event, the preservation of which is in the public interest due to its historical, artistic or scientific value;
- archaeological monument – an immovable monument, being a surface, underground or underwater remnant of human existence and activity, composed of cultural layers and the products or traces thereof contained within them, or a movable monument being such a product.
In addition to the above types of monuments, a property may be considered as part of:
- historic urban or rural layout – i.e. a spatial urban or rural layout containing building complexes, individual buildings and forms of designed greenery, arranged in a system of historical ownership and functional divisions, including streets or road networks;
- a historic building complex – a spatially related group of buildings distinguished by their architectural form, style, materials used, function, time of construction or connection with historical events;
- cultural landscape – i.e. the space perceived by people, containing natural elements and products of civilization, historically shaped as a result of the action of natural factors and human activity;
- surroundings (monument) – i.e. the area around or next to the monument designated in the decision on entering this area into the register of monuments in order to protect the scenic values of the monument and its protection against the harmful effects of external factors.
Turning to the forms of protection of monuments that are real estate, the Act on the Protection of Monuments provides for:
- entry in the register of monuments ("Register");
- recognition as a historical monument;
- creation of a cultural park;
- protection arrangements in the local development plan or in the decision on determining the location of a public purpose investment, a decision on development conditions, a decision on the permit for the implementation of a road investment, a decision on determining the location of a railway line or a decision on the permit for the implementation of an investment in the scope of a public use airport.
The register of monuments is maintained by the provincial conservator of monuments for monuments located within the province, in separate books for immovable and archaeological monuments. This register contains personal data of the owner or possessor of the monument, or the perpetual usufructuary of the land on which the immovable monument is located.
The legal basis for entering a monument into the register is a decision issued by the provincial conservator of monuments. The procedure for issuing this decision is initiated ex officio or at the request of the owner/perpetual user of the land. Therefore, applications submitted by other individuals, including organizations or associations, should be treated as requests for property entry into the register, but they are not binding on the conservation authorities.
It's worth remembering that, at the request of the provincial conservator of monuments, the entry of an immovable monument into the register of monuments is disclosed in the land and mortgage register for the given property . In such cases, the entry is based on the decision to enter it into the register of monuments. Information about the entry of an immovable monument into the register may also be published in the provincial official journal.
Another form of protection is recognition as a historical monument , which can be either an immovable monument entered in the register or a cultural park of particular cultural value. Registration is effected by a regulation issued by the President of the Republic of Poland, at the request of the minister responsible for culture and national heritage protection. The regulation also indicates the boundaries of the recognized historical monument.
Another form of monument protection is the establishment of a cultural park . This is accomplished by a resolution of the municipal council , after consulting the provincial conservator of monuments, with the aim of protecting the cultural landscape and preserving distinctive landscape areas with immovable monuments characteristic of local building and settlement traditions. The resolution should define the name of the cultural park, its boundaries, the method of protection, as well as prohibitions and restrictions. Interestingly, a cultural park extending beyond the municipal boundaries can be established and managed based on unanimous resolutions of the municipal councils (or association of municipalities) in which the park is to be established. A local spatial development plan is mandatory for areas where a cultural park is established.
The form of protection indicated in point 4 above, including the provisions of protection in the local development plan or the decisions indicated therein , results from resolutions and administrative decisions adopted by the relevant authorities. When adopting the local development plan and issuing the aforementioned decisions, administrative bodies are required to take into account immovable monuments entered in the Register and the municipal register of monuments and cultural parks, and, as needed, introduce prohibitions and orders aimed at protecting the monuments located in a given area.
At this point, it is also worth mentioning the registers of monuments, which are kept at three levels:
- national register of monuments – kept by the General Conservator of Monuments,
- provincial register of monuments – kept by the relevant provincial conservators of monuments,
- municipal register of monuments – kept by the commune head (mayor, city president).
The legal nature and scope of protection for immovable monuments based on entry in the register raises many doubts and problems. Article 21 of the Act on the Protection of Monuments specifies that it is only the basis for developing programs for the protection of monuments by voivodeships, counties, and municipalities. In practice, entry in the register is made ex officio by the competent authority, without issuing an administrative decision – usually in the form of an order. Worse still, owners are often not only unaware of the steps taken by the authorities to enter their property in the register, but also not informed of the outcome, i.e., the entry itself. This practice does not deprive the owner of the right to challenge such an entry, although each case requires individual analysis and assessment of the effectiveness of potential appeals.
Next week we invite you to read our article in which we will present the rights and obligations of the owner of a property subject to protection under the Act on the Protection of Monuments.
This alert is for informational purposes only and does not constitute legal advice.
author:
